Most of us have heard the term “double jeopardy” and associate it with the principle that no person may be tried twice for the same offense. In fact, it is likely one of the most recognized Constitutional principles, rivaled only by Freedom of Speech or the Right to Bear Arms.
As is the case with most legal principles, however, the prohibition against double jeopardy is subject to a massive exception — the Doctrine of Dual Sovereignty. Put simply, a person may be tried twice for the same crime if the offense violates the laws of different sovereignties.
As recently as December 2016, the federal Fifth Circuit Court of Appeals reiterated this legal tenet in United States v. Richardson.
Dual Sovereignty and Double Jeopardy
What does this mean? Using a simple example, a person who delivers methamphetamine in Dallas, Texas, could be subject to prosecution in a State district court in Dallas County as well as a Federal district court in the Dallas Division of the Northern District of Texas.
The reasoning underlying Dual Sovereignty is relatively straightforward. “When a defendant in a single act violates peace and dignity of two separate sovereigns by breaking laws of each, he has committed two distinct offenses for double jeopardy purposes.” This statement, made by the U.S. Supreme Court in Heath v. Alabama, simply means that the Fifth Amendment prohibition against Double Jeopardy only applies within a specific sovereignty.
What is a Sovereignty for purposes of Double Jeopardy?
How is the term “sovereignty” applied? According to the Supreme Court, “this determination [whether two entities are separate sovereigns] turns on whether the two entities draw their authority to punish the offender from distinct sources of power.” In Heath, the Supreme Court reiterated that States draw their power from a different source than the U.S. Government. The Court also found in that case that States are separate sovereigns from each other. Thus, in the Heath case, the successive prosecution in an Alabama state court for capital murder during a kidnapping, subsequent to Heath’s conviction for the same murder in Georgia, did not offend the Fifth Amendment and was held to be Constitutional.
The Petite-Policy and Double Jeopardy
Are there practical limitations upon successive federal and state prosecutions? The answer is yes, but with a major exception. The Department of Justice’s Petite-Policy (pronounced like ‘pet it’ not ‘puh-teet’) generally bars the successive federal prosecution of a crime where a state conviction has already taken place. However, this is an internal DOJ rule and is not binding upon any Court. In U.S. v. Patterson, the Fifth Circuit clearly stated such.
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“It has been clearly established that since the Petite policy is an internal rule, criminal defendants may not invoke it [the Petite Policy] to bar prosecution by the federal government. Moreover, there is a good reason for this view. To enforce the Petite policy against the government may encourage the government to abandon the policy, which could hardly be in the interests of justice. Since we adhere to the established rule that the Petite policy may not be enforced against the government by defendants, we must reject the defendants’ claim that they should not have been prosecuted because the government failed to adhere to the Petite policy.”
It is also very important to recognize that the Petite-Policy is not a blanket ban upon federal prosecutions of offenses already resulting in state convictions, rather, the policy limits such federal prosecutions “ only where there are compelling reasons, and the prosecuting attorney obtains prior approval from an assistant United States attorney general.” See, Rinaldi v. United States, 434 U.S. 22, 28,(1977) (per curiam).
So, is there any case where a Court may bar the federal prosecution of a case where there has already been a state prosecution? Yes, but only in limited circumstances. The “Sham Test” has been applied by federal courts as an exception to the Dual Sovereignty Doctrine. The Fifth Circuit recognizes the possibility for this exception in a case called U.S. v. Moore, stating, “the Supreme Court suggested in dicta that there may be an exception to the dual sovereignty doctrine when one sovereign is “merely a tool” of the other in bringing a second prosecution that is a “sham and a cover” for a prosecution that would otherwise be barred under the Double Jeopardy Clause.” This rule exception is from a Supreme Court case titled Bartkus v. Illinois.
Put simply, the “Sham Test” is a test to determine if there exists a “high level of control: one sovereign must (1) have the ability to control the prosecution of the other and (2) it must exert this control to “essentially manipulate[ ] another sovereign into prosecuting.”
Ironically, Dual Sovereignty does not afford the federal prosecution of a crime occurring in Puerto Rico if such crime was originally prosecuted in the Supreme Court of Puerto Rico. In Puerto Rico v. Sanchez Valle, the U.S. Supreme Court held that the Government of Puerto Rico is not a separate sovereignty from the federal government, at least not in terms of the Doctrine of Dual Sovereignty. Puerto Rico v. Sanchez Valle. In this case, Luis Sanchez Valle and Jaime Gomez Vazquez were indicted for selling guns to an undercover police officer in Puerto Rico under the Puerto Rico Arms Act of 2000. Then they were indicted for violating U.S. gun trafficking statutes found under Section 922 and 924 of the US Code. The Supreme Court held that the federal prosecution was barred under the Fifth Amendment’s prohibition against Double Jeopardy.
Ultimately, federal prosecutions for cases that are already prosecuted as state offenses are not highly common but absolutely permissible and encouraged by the DOJ if “compelling reasons” exist. Obviously, the DOJ determines what qualifies as a compelling one. Persons who face potential prosecutions on both the state and federal levels need to understand that the systems work very differently and oftentimes encompass different sentencing implications. They also involve variations regarding evidentiary precepts. Also significant is the fact that many federal prosecutions proceed under conspiracy statutes, which trigger massive hearsay loopholes.
Defense attorneys representing persons facing potential dual prosecutions need to understand the differences between state criminal procedure and federal procedure. They need to quickly take steps to dissuade federal prosecutors from proceeding with a successive prosecution as well as determine whether the federal prosecution is simply a ruse to allow state prosecutors a second bite at the apple. Being able to quickly establish a dialogue with federal prosecutors and demonstrate that a federal prosecution is not an effective use of resources could mean the difference between facing, and not facing, a federal charge. In most instances, but not necessarily all instances, the state system would be preferable.